Thomas Potter, III

Thomas Potter, III

Burr & Forman

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Moody’s Settles RMBS/CDO Ratings Claims with DOJ, States

After markets closed on Friday the 13th, the U.S. Department of Justice (“DOJ”) announced an $864 million settlement regarding Moody’s credit ratings of residential mortgage-backed securities (“RMBS”) and collateralized debt...more

1/19/2017 - Civil Monetary Penalty Collateralized Debt Obligations Cooperative Compliance Regime Credit Rating Agencies Credit Ratings DOJ Financial Crisis Financial Markets Financial Sector FIRREA Moody's Rating Agencies RMBS Securities Securities Violations Settlement

VW's $4.3BN Plea to Obstruction for Botched Litigation Hold

One of three counts in Volkswagen’s recent $4.3 billion guilty-plea was for obstruction of justice arising from a litigation-hold botched by house counsel. As VW prepared to admit the defeat-device problems to US...more

1/19/2017 - Auto Manufacturers Automotive Industry Carbon Emissions Compliance Criminal Prosecution Document Destruction DOJ FCPA Litigation Hold National Emissions Standards Obstruction of Justice Volkswagen White Collar Crimes

Supreme Court to Review SEC Enforcement Limitations

On Friday, January 13, the Supreme Court granted certiorari to resolve a Circuit split on the extent to which SEC enforcement actions are restricted by the five-year statute of limitations in 28 U.S.C. § 2462. Section...more

1/16/2017 - Civil Monetary Penalty Discovery Rule Disgorgement Enforcement Actions Forfeiture Gabelli v SEC Injunctive Relief SCOTUS SEC Securities Violations Statute of Limitations

SEC’s 2017 Exam Priorities

OCIE released its 2017 exam priorities on January 12. The priorities list was most notable for being shorter than prior years. But that likely means only more focus, rather than less vigor....more

1/13/2017 - BSA/AML Cybersecurity ETFs Financial Markets Financial Sector FINRA Investment Investment Adviser Money Market Funds Municipal Advisers OCIE Pensions Private Funds Recidivism Retail Investors SEC SEC Examination Priorities

SEC Scores First Muni Issuer's Admission of Wrongdoing

The Port Authority of New York and New Jersey has admitted wrongdoing and agreed to pay a $400,000 penalty to settle SEC charges that it failed to adequately disclose project risks to investors purchasing $2.3 billion in...more

1/11/2017 - Bonds Enforcement Actions Financial Markets Municipal Bonds Penalties Port Authority Risk Alert SEC Securities Securities Violations

FINRA’s 2017 Regulatory & Exam Priorities

On January 4, new President and CEO Richard Cook issued FINRA’s Annual Regulatory and Examination Priorities Letter. This year’s list in summary is: New for 2017: Targeted electronic off-site reviews “on select...more

1/6/2017 - Big Data BSA/AML Cybersecurity Financial Markets Financial Sector FINRA Industry Examinations Liquidity Risk Management Rule Market Manipulation Mutual Funds Regulatory Agenda REIT Risk Management Risk Mitigation Securities Spoofing

Circuits Split - Tenth Holds SEC ALJs Unconstitutional

The Tenth Circuit recently held that the SEC’s in-house judges are “inferior officers” hired in violation of Article II’s Appointment Clauses, creating a split with the D.C. Circuit over the issue. The Tenth Circuit held...more

12/30/2016 - Administrative Proceedings ALJ Appointments Clause Article II Constitutional Challenges Enforcement Actions SEC

6th Circuit Orders Pay-to-Play Challenge to Merits Panel

The Sixth Circuit this week declined the SEC’s request to dismiss a Constitutional challenge to the new MSRB pay-to-play rules. Instead, the Court ordered the case to a merits panel for consideration. The Republican parties...more

12/8/2016 - Administrative Merits Determinations Campaign Contributions Constitutional Challenges MSRB Pay-To-Play Public Officials SEC

Supremes Reaffirm Dirks Gifting Theory of Insider Trading; Limit Newman

A unanimous Supreme Court reaffirmed the “gifting” theory of insider trading under Dirks and rejected Newman “to the extent” it required more. The Court’s long-standing rule in Dirks v. SEC, 463 U.S. 646, 664 (1983)...more

12/7/2016 - Confidential Information Dirks v SEC Financial Markets Illegal Tipping Insider Trading Non-Public Information Personal Benefit SCOTUS Securities Violations Tippees Tippers US v Newman US v Salman

FINRA’s Cross-Selling Sweep Exam

In late October, FINRA issued a sweep exam, commanding firms to produce 15 categories of documents about firm’s cross-selling programs over a 5-year span. The sweep seeks information on cross-selling, including incentives...more

11/10/2016 - Broker-Dealer Cross-Selling Financial Sector FINRA Industry Examinations

PIABA Slams Broker-Check Again

The Public Investors Arbitration Bar Association (PIABA) renewed its criticism of FINRA’s Broker-Check® system in a report issued in late October. PIABA was especially critical of the system’s: Lack of synchronization...more

11/9/2016 - Brokers Databases Financial Markets Financial Sector FINRA Investment Investors

Banking & Financial Services E-Note - October 2016

Burr & Forman lawyers won a significant victory in the Eleventh Circuit earlier this month. In the case In re: David A. Failla, the U.S. Court of Appeals for the Eleventh Circuit affirmed that a person who agrees to...more

10/31/2016 - ATDS Banks Bond Financing Consumer Bankruptcy Debt Collection Dodd-Frank FDCPA Financial Institutions Financial Sector Foreclosure Investment Management Midland Funding v Johnson Mortgage Lenders Mortgages Retirement Shopping Centers TCPA Time-Barred Debt

6th Circuit Orders Pay-to-Play Challenge to Merits Panel

The Sixth Circuit this week declined the SEC’s request to dismiss a Constitutional challenge to the new MSRB pay-to-play rules.  Instead, the Court ordered the case to a merits panel for consideration.  The Republican parties...more

10/10/2016 - Administrative Merits Determinations Broker-Dealer Financial Markets Financial Sector Investment Adviser Motion to Dismiss MSRB Municipal Advisers Pay-To-Play SEC Securities

Tilton Tilts at SEC Enforcement, Again

Having lost her initial suit (and appeal) to enjoin an SEC administrative enforcement action against her, the so-called “diva of distressed,” Lynn Tilton recently filed another lawsuit trying to halt her upcoming October 24...more

9/14/2016 - Administrative Proceedings ALJ Appointments Clause Due Process Enforcement Actions Fifth Amendment SEC Securities Litigation

Tennessee Securities Division Ramps Up Enforcement

The Securities Division of Tennessee’s Department of Commerce and Industry has increased its enforcement activity during 2016. The recent actions include: Final Administrative Orders: Clifton Alexander and HugeROI.com...more

9/13/2016 - Broker-Dealer Cease and Desist Orders Consent Order Enforcement Actions Financial Markets Financial Sector Investment Adviser Securities Securities Violations

SEC Fines Company for Agreements Restricting Whistleblowers

The SEC has fined an Atlanta company $265,000 for using various severance agreements restricting whistleblower activities. The Dodd-Frank Act added ’34 Act § 21F encouraging whistleblower programs. The SEC adopted Rule...more

9/12/2016 - BlueLinx Holdings Confidential Information Dodd-Frank Employer Liability Issues Government Agencies Government Investigations Hiring & Firing Popular SEC Severance Agreements Whistleblower Protection Policies Whistleblowers

SEC Approves FINRA & MSRB (Almost) Pay-to-Play Rules

The SEC announced August 25 that it approved FINRA’s pay-to-play rules governing placement-agent or solicitor broker-dealers and was “prepared” to approve the extension of MSRB Rule G-37 to municipal advisors as well....more

9/8/2016 - Broker-Dealer Dodd-Frank Financial Markets FINRA Investment Adviser MSRB Municipal Advisers Pay-To-Play Rule 206(4)-5 Rule G-37 SEC Securities

SEC Sanctions 71 Municipal Issuers for Misstatements

On August 24, the SEC announced settled administrative actions against 71 state and local issuers arising from $3.7 trillion in municipal securities offerings.  The Commission alleged the issuers made false statements...more

9/6/2016 - Administrative Proceedings Cease and Desist Orders Disclosure Requirements Enforcement Actions False Statements Financial Markets MCDC Municipal Bonds Municipal Securities Issuers Municipal Securities Market Sanctions SEC

Circuits Split on “Look-Through” Jurisdiction Over Arbitration Awards

Within weeks, the Second and Third Circuits reached opposite conclusions over federal jurisdiction to confirm, modify or vacate arbitration awards.  The Second Circuit now allows courts to look through the face of the...more

9/1/2016 - Arbitration Arbitration Awards Corporate Counsel Federal Arbitration Act Federal Jurisdiction Manifest Disregard Securities Litigation

Corporate E-Note - August 2016

In a “Table of Experts” series published on July 15, 2016 by the Birmingham Business Journal, Ed Christian provides his insight into a series of questions related to mergers and acquisitions. Please see full E-note below...more

8/30/2016 - Acquisitions Administrative Proceedings ALJ Business Associates Business Development Business Model Business Plans Business Pursuits Corporate Counsel Corporate Entities Covered Entities Cyber Threats Cybersecurity Data Breach Doing Business Foreign Jurisdictions Health Care Providers Healthcare Malware Mergers OCR Ransomware SEC Securities Litigation Whistleblowers

SEC Continues Crackdown on Whistleblower Restrictions: Calls Qui Tam Waivers "Targeting"

The SEC announced its second enforcement action in a week against a company using severance or confidentiality agreements requiring employees to waive whistleblower bounties or their right to bring a qui tam action....more

8/18/2016 - Confidential Information Corporate Counsel Dodd-Frank Enforcement Actions Fines Health Net Qui Tam SEC Securities Violations Severance Agreements Whistleblower Awards Whistleblowers

SEC Fines Company for Agreements Restricting Whistleblowers

The SEC has fined an Atlanta company $265,000 for using various severance agreements restricting whistleblower activities. The Dodd-Frank Act added ’34 Act § 21F encouraging whistleblower programs....more

8/15/2016 - Civil Monetary Penalty Confidential Information Dodd-Frank Employment Contract Rule 21F SEC Securities Exchange Act Securities Violations Severance Agreements Unfair Labor Practices Waivers Whistleblower Awards Whistleblower Protection Policies Whistleblowers

DC Circuit Upholds SEC ALJs in First Merits Opinion

The D.C. Circuit has affirmed that SEC ALJs are not constitutional Officers subject to the Appointments Clause, rejecting perhaps the strongest of the constitutional challenges to the Commission’s administrative forum. The...more

8/10/2016 - Administrative Proceedings ALJ Appointments Clause Article II Enforcement Actions Sanctions SEC Securities Securities Fraud

FINRA Defends Mandatory Arbitrations; Threatens Discipline

In a July 22 Notice, FINRA took umbrage at a growing line of Court decisions suggesting that a later or more-specific forum selection clause in an agreement between the parties may override a prior customer arbitration...more

8/4/2016 - Arbitration Arbitration Agreements Consumer Contracts Financial Sector FINRA Forum Selection

SEC & MSRB’s Pay-to-Play Rule: “Governing Games - Mocking, Part 2”

This SRO gamesmanship is making a mockery of governing. The latest is the SEC’s position that it didn’t take any action on the new MSRB Rules extending pay-to-play prohibitions to municipal advisors, so it can’t be sued...more

8/2/2016 - Bonds Dodd-Frank MSRB Municipal Advisers Municipal Bonds Pay-To-Play Regulatory Oversight Rule G-37 SEC Securities Securities Exchange Act SRO

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